Judge deems MDNRE's air permit denial of Holland BPW unconstitutional

Holland’s James DeYoung power plant has a renewed chance at expansion.An Ottawa County judge Wednesday ordered the state to reconsider an air permit to expand the plant.Circuit Judge Jon Van Allsburg ordered the state to reconsider Holland’s application based on rules as they stood in Augu...

Holland’s James DeYoung power plant has a renewed chance at expansion.

An Ottawa County judge Wednesday ordered the state to reconsider an air permit to expand the plant.

Circuit Judge Jon Van Allsburg ordered the state to reconsider Holland’s application based on rules as they stood in August when it was denied, saying the Michigan Department of Natural Resources and Environment wrongly based its denial of a permit on how much power the community would need in the future and not air quality issues.

VanAllsburg also ordered the MDNRE to disregard Gov. Jennifer Granholm’s executive directive that the state agency consider a needs analysis.

He agreed with the Attorney General Mike Cox’s assessment that Granholm’s executive directive was an attempt to amend the state law, violating the state constitution’s principle of separation of powers.

VanAllsburg called the decision “capricious” and based on a “whim.”

Although the city asked the judge to require that the state issue the air permit immediately, he gave the MDNRE 60 days.

The BPW this fall appealed a state decision to deny its proposed $250 million, 78-megawatt power plant expansion. The city council’s September vote to sue the MDNRE was unanimous.

The BPW submitted an air permit application for a proposed expansion at coal-fired James DeYoung to the state more than three and a half years ago.

In October, the BPW sued to force the state agency’s decision, and the MDNRE responded with a denial based on a needs analysis by the Michigan Public Service Commission that said the city doesn’t need the expanded capacity and didn’t explore alternative energy sources deeply enough.

It was public comments calling the plant oversized and asking for more environmentally minded alternatives that drove the state to ultimately deny the permit, said Assistant Attorney General Neil Gordon representing the MDNRE.

However, attorneys for the city argued, it seemed the most important public comment was really from Granholm when she issued an executive decision in 2009 ordering the MDNRE to examine alternatives in all coal plant requests.

“This case is not about an executive directive,” said Shannon Fisk, senior attorney for Natural Resources Defense Council, calling it a “red herring”

Rather, Fisk said, it should be about unnecessary pollution.

The Natural Resources and Environmental Protection Act, on which the state is supposed to base its decision, requires analysis of alternatives when requested in public comments, attorneys for the state argued.

Power plant opponents are hopeful that the state will again deny the expansion.

Sierra Club Development Director and Energy Issues Organizer Jan O’Connell was upset by the verdict, but remains optimistic the project still can be stopped.

“We can still make a decision considering everything except need,” she said, citing mercury, lead, health and other concerns.

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“These delays are because of Holland’s own doing,” Gordon said, citing the months it took the utility to submit necessary documents and various revisions.

However, the judge ruled the MDNRE had exceeded its 120-day deadline to respond to a permit request.